JURY SERVICE PLEASE

Near the end of 2016, a family friend of mine served on a criminal jury in a high profile trial in Oklahoma County. She is a highly-educated professional with a working professional husband and four children. All of her children are out of the home and she had told me she actually wanted to serve on a jury. Typically, I talk to friends who ask me if I know how to get them out of jury service which then launches me into my jury service and the American judicial system soapbox. I am also aware of many websites on how to “avoid” jury service. I do not know of any sites that talk about proudly serving on juries. I hear the same people who don’t want to serve complaining that jury verdicts are wrong or what they believe are wrong findings by jurors as they come in on cases which are splashed across the daily news. We do not really know the facts of those cases, what happened at trial or even whether the result was correct or just. In most cases we only know what the news media reports which usually contains a lot of misunderstandings of the judicial system, facts and the law.

            As lawyers, we should give our friends and family positive feedback on jury service and encourage them to serve. Many times I hear the complaint from other lawyers that jury pools are not representative because many educated working class people are able to “avoid” jury service. Who can blame people in their overly scheduled lives and busy jobs for not wanting to spend a day or two at the courthouse for nominal compensation? No one wants to be away from home and family for the time it takes to serve on the jury. I am sympathetic to the situation because as a lawyer in a jury trial I put in double or triple that amount of time, but I also understand that for every verdict that makes news stories and headlines there are dozens of regular citizens with common sense who chose to not participate in the system. This means the decisions are made by others who may reach the wrong conclusion or might get it right. You do not know whether it was really a crazy wrongly found verdict or not.

            Tell your friends and family when they ask that there are two ways of participating in the American system, voting and the jury system. If they really want to have input into the system, they need to appear for jury duty, stay on a panel rather than try to get thrown off and be one of the jurors who sits through the entire trial hearing the evidence and deciding the verdict. Until they do that, they really do not know whether a case is wrongly decided or whether your fellow citizens who did do jury duty got it right or wrong. The Seventh Amendment is unique and special. We are in danger of letting its fruits slip away. Encourage others to accept and carry their jury service out to the fullest extent when they receive a notice for jury duty.

            After all, if they like listening to alternate fact scenarios and speakers who like to hear themselves talk, they will love a jury trial. In all seriousness, our judicial system really is based on the common sense of the participants. If the people participating are not representative because the educated and employed are able to get out of jury service, then the system has a flaw which can affect verdicts. Juries are intended to represent the diversity of our community in all ways. For some reason, the voice of every mediator I know sounds off in my head at this point asking the standard opening question: Do you really want to risk your business/money/life/insert subject with a jury of twelve people off the street of X county? Even considering that, do your best to be positive and supporting of jury service since it is your and my clients that are risking their future outcomes in the judicial system. After 30 plus years of jury trials you learn to have faith in the jury system or you should not be in this profession. Tell anyone that will listen that jury service is a proud part of the American way.

 

 

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

MY OCBA IS ALREADY GREAT!

 

I have taken a couple months off from writing/blogging for the Briefcase and Open and Obvious? to consider the vast volume of rants and other written communication via social network, legitimate media outlets or political administrations that have come our way since November 2016. During this time AI continues to take over human life and the legal profession, Bull remains on network television, some ABA resolution aimed at decreasing the number of law schools failed, private information has been hacked and we have a lot of judicial vacancies. In considering all of this fear-mongering, I have reached a couple of conclusions I wanted to share with you in a peaceful and non-provoking way. First, the OCBA is a great professional organization and worthy of your involvement. Next, now as much as ever, words have meaning and accuracy and the proper use of words should not be overlooked, especially by professionals.

 

          As our state legislature is back in session and addressing again how Judges are selected, the OCBA has created and distributed a PowerPoint for the use of its members in educating local civic groups on the function of the Judicial Nominating Commission (“JNC”). This PowerPoint is exceptional and you can tell that much time and effort was put into its production. I am not writing here to argue that we have the best and brightest judiciary, after all they are lawyers just like the rest of the Bar with different levels of education, experience and individual demeanor. Nor am I saying this to be critical of our judiciary or our selection process, in fact to the contrary, I am a proponent that our selection system is as good as any. I encourage all of you to learn as much as you can about the JNC so that you can spread the word among your non-lawyer friends and family that our judicial selection system could be much worse if the legislature makes some of the proposed changes. Simply by looking at other states where judges are solely political appointments or solely the result of an election process, we can see the good and bad of the other methods of judicial selection. Our system is a bit of a hybrid but gets us where we need to be with a fair and unbiased bench. OCBA in supporting this educational effort concerning the JNC is playing a significant part in educating voters. Please educate yourself and support this effort.

 

          The OCBA is again involved in the Ask A Lawyer program, seeking volunteers for the April 27^th OETA session. Ask A Lawyer has been a staple of the Oklahoma Bar Association and the OCBA’s efforts to assist Oklahomans with legal issues on or around Law Day. You can be a lawyer volunteer answering caller’s questions regarding a wide range of legal issues. This event provides an excellent service to the citizens of the State of Oklahoma and deserves your support.

 

          Finally, the OCBA’s Bench and Bar CLE scheduled for March 31^st at Sequoyah State Lodge near Fort Gibson puts its members in an education and social setting to learn from and interact with District Court Judges, Federal Judges and State Appellate Justices. You cannot ask for a better opportunity to get to know the lawyers you are working with (and against) and the judges you are appearing before. This type of social interaction in our profession is a must for us to be a successful Bar. We, as a profession, tend to rely on the adversarial model to solve everything. In fact, as most of you know, the majority of litigated cases settle without trial and most disputes are resolved without a Court hearing. Many times this simply takes picking up the phone and talking to opposing counsel, which is much easier to do if you have met face to face and have a relationship. The same goes with appearing before the bench. Typically a lawyer’s reputation, skills and tactics are presented to the Court before their in person introduction, by the written work product that a judge reviews before a hearing. A lawyer’s best trait might be to be known as ethical and trustworthy. The ability to properly use the English language in case submission is also a nice skill. This is something that must be maintained in your written and spoken work. Do yourself a favor and get to know the bench you practice before, don’t rely on spellcheck and always proofread.

 

          In these tumultuous times, littered with 144 character rants, it is satisfying to know that the association that we voluntarily joined is doing great. The current OCBA leadership, Judge Barbara Swinton, and the future leadership, David Cheek, put our profession first. Take advantage of opportunities provided by the OCBA, and most of all, let your non-lawyer friends, relatives and neighbors know that we are a proud and ethical profession.  Next month we will get back to something topical for your practice like jury selection. I thought this topic would be better than me filling the internet with art.  But for now, let’s make sure we open the envelope with the real winner’s names before we start congratulating ourselves on a job well done.

 

 

 

 

 

          Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

 

Feliz Navidad!

Tis the season! The end of 2016 is finally upon us. I say finally because I have memories of end of year 2014 great expectations for the year 2015. Then as the year 2015 drug along, I once again had great expectations of the year 2016. Then comes 2016 with all of its glory. After surveying the happenings of 2016, it seems to boil down to the Cubs win the World Series and look what comes with that. No, mullets are not back!

          As I have continued writing these monthly articles, with some encouragement from others, for the OCBA and the Open and Obvious? blog, it now appears to me that good things come in triples or even triple doubles. For example, 1) Don’t kneel to Negan, 2) Don’t let a Lannister lord over you, and 3) You don’t really want to find out who Wyatt is. But there are better sets of three out there than that. As we bring 2016 to a close, we should set goals for 2017 to make ourselves better, the people around us better, and our profession better.

          You can accomplish these goals in many ways, but I have a few suggestions. Get involved in OCBA and OBA Bar related activities. Our profession needs and requires a strong Bar. Not only can you keep yourself up to date on ever changing laws, regulations and ethical requirements but the social aspects of the Bar are also important. In a recent discussion I had with an opposing attorney I have known for around 25 years, he expressed to me gratitude for the situation that we were comfortable picking up the phone and calling each other to resolve questions and differences we had in ongoing cases rather than to resort to writing fax letters and nasty grams. It is a lot easier to do this when you actually know your opponent. Embrace technology in the practice of law, as it is even required by the new comments to our ethical code, but don’t forget the power of face to face meetings.

          Give back to the community which we serve. Not only should our profession be devoted to the civil justice system but also to social justice. I cannot begin to list all the excellent charities and activities in and around the Oklahoma County/Oklahoma City metro area, but there are many worthy of your time and financial support. We choose 3-5 every year at this time to make special donations to as a Firm. Social justice is a very important aspect of our professional lives. If you cannot volunteer then provide financial support so that others can carry out justice for those who have fallen through the cracks of societal supports.

          I have found that participation in Bar related education opportunities provided by the OCBA are meaningful in several ways. These opportunities range from talking with at-risk middle school kids about rights, laws and the civil justice system to presenting awards to Law Day essay contest winners in AP Government high school classes. The wide range of opportunities and lack of opportunities in our education system and the potential impact you can have goes from the impoverished with very few chances of success to those who have already planned out their educational and professional careers. It is both eye opening and rewarding. Find the opportunities and get involved. Again, I cannot list them all here but it is gratifying to observe the many examples of service from other members of our profession from different practice areas, different firm sizes and solo practitioners as they are involved in their own social justice projects and charitable giving. Unfortunately, most of these activities aren’t newsworthy so the public does not hear about them, but we as a profession should continue and advance our involvement.

          Finally, concerning a lawyer’s place in society, remember your sworn oath as an attorney and the ethical code that controls our professional conduct. Of all of the citizens in the United States who should know the Rule of Law, the U.S. Constitution and fight to protect them, attorneys are the chosen few. We occupy a special position in the American system of justice and guard its foundation, the right to jury trial. This is no small or unimportant task. Consider these things as you determine your own triple double goals for 2017.

          Be safe, enjoy the college football bowl season and Go Thunder!

          I want to wish you a Merry Christmas! And a Happy and Peaceful New Year! 

 

          Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

NO BULL!

 

The original intent of this column has been focused on making legal practitioners aware of how changes in technology affect our profession and ethical responsibilities. I take a quick departure from that goal, but not really, to discuss a new TV series on CBS entitled “Bull”[1] I am a fan of actor Michael Weatherly previously on “N.C.I.S.”  and a fan of using courtroom science in appropriate litigation situations. However, I am not a fan of Bull.

My take away from the first episode was the mischaracterization and minimalizing of the lawyer’s role with the client and the clear trampling upon of our profession’s standing by the writers. The thought that your trial consultant’s input is more important to your client’s case than an attorney’s professional advice is a theme developed throughout each storyline thus far, and is typically overtly demonstrated by the character’s dialogue. The character, Dr. Jason Bull, apparently has the ability to replace or subjugate any lawyer his client has retained either previously or in the future. Additionally, attorney work product privilege and ethical consideration seem to have no bearing as Dr. Jason Bull can change sides in a case that he has been retained in after he decides which party is worthy of his efforts.

Next up on my criticism hit list is the entire premise of the show is off-putting. Apparently U.S. citizens who have been taught and told that one of the fundamental hallmarks of the American way that makes our country different is our civil justice system, have been duped. According to Bull’s storylines, we as citizens serving on juries, are nothing but puppets to be manipulated by Dr. Bull and his minions. Regardless of the entertainment value, the show reminds viewers every week that when you are in a lawsuit, justice doesn’t matter, your lawyer doesn’t matter and jurors are to be manipulated such that justice prevails only to the manipulators. Great thoughts for the non-lawyering public to hold about lawyers and the civil justice system, right?

The entertainment value is average to above average primarily because of the use of technology to measure juror and shadow juror responses, but I cannot get beyond my lawyer eyeglasses on this show’s inherent flaws. I am not a fan of the messages that are being sold to the viewing public by this new series. Moreover, in a recent episode set in a fictitious Texas venue where stealing your opponents notes, strategy and playing every local good old boy trick in the book including getting the other side drunk before closing statements is just playing by the rules of the game. It is also ok to manipulate the courthouse elevators with jurors in them so as to demonstrate the points of your closing statement and the county wide weather warning system so that jurors will be forced to go in a basement where they can overhear rehearsed statements otherwise not admissible in court.

Sure, I am a believer in knowing your venue, effective voir dire, mock trials, focus groups, shadow jurors and creating juror profiles in appropriate cases. Who hasn’t been hometowned at some point in life? I even retain a high quality professional juror and trial consultant when case circumstances and a client’s budget will allow. But this show takes the good part of that technology, such as having data feedback that shows a juror’s bias to your position on an issue with red, yellow and green lights on multiple computer monitors and destroys it with a negative message that potentially impacts the public perception of our profession and the civil justice system. Do jurors now expect shenanigans and manipulation distrusting even the truest of motives? For that reason, I call bull on Bull.

Quickly back on point of our Open & Obvious intended purpose, note that the Oklahoma Rules of Professional Conduct were amended by SCBD 3490 effective immediately that, among other things, in the comment section to Rule 1.1 on Lawyer Competence at note 6 the language concerning maintaining competence includes the terms “including the benefits and risks associated with relevant technology.” So there you have it, get yourself competent.

Back to last month’s article on artificial intelligence, I was thereafter greeted in my inbox by several items I refer you to including “How AI Will Change the Practice of Law”[2], “Robots in Law: How Artificial Intelligence is Transforming Legal Services”[3] and “AI Predicts Outcome of Human Rights Cases”. Researchers claim an artificial intelligence computer system has correctly predicted the outcomes of hundreds of cases heard at the European Court of Human Rights to an accuracy of 79 percent.[4] Have a Happy Thanksgiving!

 

 

End Notes:

1. http://www.cbs.com/shows/bull//
2. ABA Law Technology Today, Nicole Black, November 1, 2016. Lawtechnology.org/2016/11/how-ai-will-change-the-practice-of-law-by-nicole-black
3. Publishing date November 18, 2015 by Ark Group Publishing USA; http://www.ark-group.com
4. bbc.com/news/technology-37727387?source=techstories.org; Jane Wakefield, Technology Reporter, 23 October 2016

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

 

 

 

 

 

 

 

 

 

Happy Halloween! Artificial Intelligence Attacks

We are always bringing some new computer program or file management system online at our firm. After the last several years of continuing education advisories that artificial intelligence is going to change the way we practice law, I pondered when these already online systems might become “self-aware”.

It all started with self-driving cars and smart trucks. Sure, who would not want to sit in their Tesla or Google vehicle watching a movie in the back seat while being driven around town? Or, how about the smart tractor-trailer eighteen wheel rig that avoids accidents. I have heard of and observed these in the real world for several years now. But can your professional judgment be replaced by a computer? What happens when businesses pool data concerning similar claims and risks in such a way that claims are efficiently handled, settled and closed…all without a lawyer or with minimal use of a lawyer. Blasphemy you say, maybe it is closer than we realize or want to acknowledge.

I finally came upon a blog article that actually makes good sense of the whole situation and want to recommend it for your viewing pleasure. It begins with a quote from a Chinese proverb “[w]hen the winds of change are blowing, some people are building shelters, and others are building wind mills.”[1] Author Steven Embry, a lawyer and “technologist” states that data analytics (DA), its brother predictive modeling (PM), combined with their new and improved cousin, machine learning “artificial intelligence” are gradually developing the highly effective tools for insurance companies and even self-insureds to better mitigate and resolve repetitive claims. Improved claims management stemming from the use of these tools would decrease litigation and legal spending, better still resulting in more predictable litigation outcomes and finally reduce overall liability exposure.

He goes on to state in his blog that industries like: 1. Hospitals and doctors “medical malpractice”, 2. Businesses with a high number of occupational claims, 3. Lawyers “legal malpractice” and 4. Assisted care facilities are a few of the industries who might use these tools to reduce indemnity spend and indirectly legal spend.[2] So essentially, the industries with the most data and similarity of claims have a better chance of utilizing the new technology to reduce their legal expenses. My conclusion, we are likely to see the insurance industry try this first. After all, these are the same people who brought us electronic billing, third party bill audits, alternative fee arrangements and staff counsel.

I get the part that I am a shelter builder and not a windmill builder but this is a profession, right? Even the local news reported last week that OKC neighborhoods are complaining about windmill noise. Isn’t there an old saying that goes something like “garbage in equals garbage out”? Are there privacy and ethical issues surrounding the use and sharing of data for DA, PM and AI to evaluate claims and settlement, sure there are. Have all of those been addressed or even thought of, probably not. So we have plenty of unanswered questions going forward but can we ignore these advancements and their effect on the legal practice and profession? Do so at your own peril. As we all know the ABA in 2012 added to the comments of Rule 1.1 that lawyers have a duty to keep abreast of the benefits and risks associated with technology.[3] Now the Florida Supreme Court has approved a rule to go into effect in 2017 requiring members of the Florida Bar to take mandatory technology CLEs.[4] Since this is for the October issue, consider that I am really only writing this article in honor of a good Halloween fright.

After all, consider that we have seen humans get into trouble when relying on AI before: 1. Skynet[5], 2. Genisys[6], 3. HAL 9000[7], 4. Auto[8] 5. V.I.K.I[9], 6. WOPR[10], 7. Agent Smith and the Machines[11], 8. The Red Queen[12].Trick or Treat?

End Notes:

1. Data Analytics and Predictive Modeling: Game Changer for How You Manage Claims…And View Your Lawyer; Stephen Embry, Pulse, LinkedIn, 9-23-2016
2. Id.
3. Rule 1.1 comments, ABA Model Rules of Professional Conduct
4. In Re: Amendments to Rules Regulating the Florida Bar 4-1.1 and 6-10.3 (Fla S. Ct. Sept. 29. 2016)
5. Terminator films (1984-2009)
6. Terminator Genisys (2015)
7. 2001: A Space Odyssey (1968)
8. Wall-E (2000)
9. I, Robot (2004)
10. War Games (1983)
11. The Matrix Trilogy (1999-2003)
12. Resident Evil (2002)

 

 

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

Briefcase Year In Review

Approximately one year ago I finally made good on my promise to Judge Geary Walke that I had made three years earlier to write a series of columns for the OCBA Briefcase. This started out as a trilogy of articles for the OCBA Briefcase introducing more mature practitioners to new technology, social media and the inherent issues for attorneys that come with “progress”. In the past twelve months I have learned that it is (1) difficult to teach an old dog new tricks, (2) no good deed goes unpunished and (3) it is very difficult to write a monthly article much less a biweekly blog. One of my favorite writers, Dave Barry, a Pulitzer Prize winner[1] pens a year-end review each year that is a worthy piece of writing[2]. So with lofty goals I set myself up to be a witty literate attorney writing for the good of the profession. In September 2015, I set out to write a monthly installment for the Briefcase and also publish it as an internet blog entitled “Open & Obvious?” The only failure guaranteed more so than this project is rating my beloved Sooners in the top 3 preseason with an incredibly difficult early schedule and my true belief that they will go undefeated.

However, I did not immediately get 100 likes or followers on social media from this nor did the Sooners get to 1-0. Nor did I get a new client. So many attorneys immediately ask themselves without a new paying client and no ego gratification, why do it. I guess all attorneys are inherently modern day Don Quixotes, regardless of age. For without holding tightly to the cause of civil justice, how could we remain in this profession. I, for one, did learn from this exercise and will persevere on behalf of the good of the County Bar and Oklahoma Lawyers.

It is only fitting that Judge Walke, who got me into this mess, would retire as editor on the one year anniversary of my first Briefcase article. I feel a little bit like Charlie Brown trying to kick the football that Judge Walke just pulled away. But some other things have been learned along the way. My first installment entitled “Natives v. Immigrants” was written when people nationally were talking about building walls. Some people are still talking about building walls and even visited the other side of said proposed wall. I was simply explaining why technology was a natural for millennials and not so much for boomers. My second article generally dealt with whether old lawyers were too far along to understand new social media. No real changes on that front to report but I did get a few readers of my blog on LinkedIn and Facebook. Skipping along, the theme of a later article was “When is a Friend Not a Friend”. Since that time “friends” have cyber penetrated just about every computer system available to penetrate including national retailers, banks, the IRS, Dropbox, LinkedIn and the Democratic National Committee. My article begging for friends, “Can I Be Your Friend” got me nowhere.  The next installment “Did My New Friend Just Take My Data?” is a question that the DNC is still asking.

With some trepidation, I ventured into bar exam pass rate territory in another article. This article even drew a rebuttal article published by Judge Geary Walke, himself. So I guess I really missed the mark on that one. But, bar exam results are around again and so are the same discussions as before. In a follow up installment, I listed considerations for getting your own piece of the cloud before they run out of clouds. I wrote this article so well that I am actually buying a piece of a cloud complete with all the cyber security bells and whistles. Encrypted email ability is now a must have for many clients. Are any of you doing these things?

Then came “Are They Really Super?” Well I just received a boat load of notifications online of certain “Best Lawyers™” and “Super Lawyers™” at firms and for lawyers that I know. On cue with this article, I received an email to be named a “Best Premises Lawyer in Oklahoma” from a European publication to be paid in euros, I forwarded it to Judge Walke to prove I do not write fiction. One of my lawyer friends, who is licensed in New York, recently posted on Facebook that he had received multiple invitations to be nominated to the Top 100 Lawyers in the state of New York in his practice area. He noted the cost of such honor and that at the time of his last invitation there had been around 700 acceptances. As of this writing, I received an invitation to be one of the 100 something in Oklahoma lawyers. Again wondering how they count to 100 I saw that most lawyers in Hiltgen & Brewer received this same letter. I do note that several of the national and local publications now have very similar disclosure language for honors to the New Jersey opinion requirements I discussed about in that article. It seems that the publishers are being proactive on the ethics front regardless of the state. It is good for the profession and makes sense since these honors reach all 50 states and the globe via the internet.

So I hope that you got something out of this yearlong writing exercise and if nothing else, at least a little knowledge of what technology is out there and available. I also just received an invitation from one of the major publishers of lawyer marketing materials announcing an interactive webinar on blogging for all of those law firms wanting to increase their business. Their premise is that legal surveys show that law firms who regularly blog more effectively communicate with their potential markets and clients. Maybe, just maybe, I am ahead of the curve. I’ll continue to contribute to the Briefcase and publish in “Open and Obvious?” and hopefully with practice I’ll do better. Unlike Judge Walke, I am not ready to retire my quill and ink. And as in a popular cable television series, no one is really dead unless you see their head on a pole.

End Notes:

1. en.wikipedia.org/wiki/Dave_Barry
2. Miami Herald, Dave Barry’s 2015 Year In Review, December 23, 2015.

 

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

Are They Really Super?

                     YOUR “RISING STARS” JUST GOT SHOT DOWN

Lawyer advertising that use phrases such as “Super Lawyers™”, “Rising Stars™”, “Best Lawyers™”, “Best Law Firms™”, “America’s Leading Lawyers™”, “Top Ranked™” or other similar phrases, just took a hit, and in of all places, New Jersey. It seems that the number of complaints by other lawyers about those advertising such laurels and accomplishments not being worthy of such titles resulted in a May 4, 2016 Notice to the Bar from the New Jersey Supreme Court Committee on Attorney Advertising[1]. These coveted badges, icons and logos appear on letter head, business cards and websites. It seems like a day does not pass without receipt of an email offering me the opportunity to be named the “Best Premises Liability Lawyer in Oklahoma” on someone’s list. However, a drawback has been that I can never figure out whether the price quoted was in euros, pounds, sterling or some other monetary denomination I was unfamiliar with and whether the publisher of this accolade was indeed going to publish it in the United States at all. I have even had similar discussions with lawyers who are under the misconceived notion that they are the only lawyer that is receiving such emails.

Putting all practical concerns about how to spend your marketing dollars aside, and there are many ways to do that, there is the ever present ABA Model Rule 7.1 to govern our choices:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. [2]

The ABA Eye On Ethics, July 2016 blog article deals with the issue of LinkedIn and what a lawyer should do when a client, former client, friend, family member or competitor rates you for a skill which you in fact do not have.[3] This should be cause for concern for all of us to go review the reviews we receive. I readily admit I do not practice in certain areas of law and would be shocked if someone gave me a high rating for those skills on any website. However, in this article we are dealing with the issues of the super and the not so super.

The business of lawyer advertising has trended upward exponentially with the use of the internet. Consequently, we should not be surprised that many of the selection businesses for honors and accolades are owned by the same company that wants to market and build your website, blogs, electronic newsletters. Some may recall these companies started out in lawyer advertising by selling law firms and lawyers top placement on web searches and quick response buttons.

I must confess that I trumpet my honors and accolades on my web page and pay the piper to do so. A quick web site search of Oklahoma law firms in all types of practices, small and large alike, reveals that everyone else seems to be doing the same thing. Here is the rub, what do the public consumers of professional services believe when they see this advertising portrayed as an honor? In order to protect against misrepresentation, we fall back on ABA Model Rule 7.1. The Oklahoma corollary contains the same language.[4] Interestingly, New Jersey’s version of the rule contains an official comment requiring:

As a preliminary matter, a lawyer who seeks to advertise the receipt of an award, honor, or accolade that compares the lawyer’s services to other lawyers’ services   must first ascertain where the organization conferring the award has made “inquiry into attorney’s fitness. The rating or certifying methodology must have included           inquiry into the lawyer’s qualifications and considered those qualifications in       selecting the lawyer for inclusion.” This inquiry into the lawyer’s fitness must be   more rigorous than a simple tally of the lawyer’s years of practice and lack of disciplinary history. Pursuant to Rule of Professional Conduct 7.1(a)(3)(ii), the basis for the comparison must be substantiated, bona fide and verifiable.[5]

 

Oklahoma does not have comparable commentary but does include comments concerning the prohibition against misleading but truthful statements or truthful reports. Oklahoma also contemplates a disclaimer but does not provide required elements.[6] However, the New Jersey trend may be coming to all states as the need for rational limits seems to raise its head. Consequently, vetting the awarding organization that has chosen you or your firm before you give them a check makes sense. New Jersey adds additional steps, once this has been verified, you then need to display beside your badge, icon or referred to honor in close proximity to the reference a description of the standard or methodology of which the award is based, the name of the comparing organization and finally a disclaimer that no aspect of this advertisement has been approved by the Supreme Court of New Jersey.[7]

So for the time being, you are safe to squander your budget as you wish. However, pay close attention to future guidance issued by the General Counsel’s office and OBA. Since we don’t practice in New Jersey, I am not aware of what gave rise to the ground swell of complaints that some lawyers weren’t super, rising, best or leading. It could have been one of several reasons, such as; (1) those who simply did not have the money to advertise those accolades; (2) those who were jealous for being over looked for honors; or (3) legitimately complaining that those receiving honors were not worthy. Until the Oklahoma lawyer advertising ethics landscape changes, we will be pursuing those badges, icons and logos with the rest of you; it is sort of like pursuing stars, points and miles except that you don’t get a free trip, free room or free latte and maybe not even a new client. But I did find a Pokemon in the parking lot.

End Notes:

 

1.     New Jersey Bar Assoc. Advertising Committee available at           www.judiciary.state.nj.us/notices/2016/n160518a.pdf, 2016-07-14.
2.    ABA Model Rule 7.1
3.       www.americanbar.org/publications/youraba/2016/july-2016/endorsements-on- social- media-websites
4. Okla. Stat. tit.5, App. 3-A §Rule 7.1 (2008)
5.    http://www.judiciary.state.nj.us/ notices/2016/n160518a.pdf
6.   Okla.Stat.tit.5 App 3-A§ Rule 7.1 (2008), supra at comments 2 & 3
7. New Jersey Assoc., Supra.

 

 

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.